Delhi District Court
State vs 1. Sonu on 26 May, 2022
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE (WEST-02), DELHI.
Sessions Case No. 462/2017
Assigned to Sessions on 05.08.2017
FIR No. 230/2017
Police Station Punjabi Bagh
Under Section 392/397/411/34 IPC & 25/27/54/59
Arms Act
Charged Under Section 392/397/411/34 IPC & 25/27/54/59
Arms Act
State Vs 1. Sonu
s/o Sh. Shankar
R/o H.No. D-7/186, J.J. Colony,
Sultanpuri, Delhi.
2. Kalu
s/o Sh. Sikander
R/o D-7/94, Purana Macchi Chowk,
Sultan Puri, Delhi
Arguments heard on 24.05.2022
Date of Judgment 26.05.2022
Final Order Convicted
Appearance(s) : Sh. Alok Saxena, Ld. Addl. PP for the State.
Sh. Pravin Kumar Pachauri, Ld. counsel for the accused
Sonu and as Amicus Curiae for accused Kalu.
JUDGMENT
(A) PRELUDE :
1. The case pertaining to the charge sheet u/s 173(2) Cr.P.C. in respect of FIR No. 230/2017 u/s 392/397/411/34 IPC & 25/27/54/59 of Arms Act of PS Punjabi Bagh was committed to the Ld. Principal District & Sessions Judge (West), Delhi vide order dated 31.07.2017 of the Ld. MM.SC No. 462/17 State Vs Sonu & Anr. Page 1 of 25
(B) PROSECUTION VERSION:
2. The brief factual matrix as per the case of the prosecution is that :
On 08.05.2017, PW-6 SI Baljor (the then ASI) being posted at PS Punjabi Bagh, was on patrolling in the area of Madipur alongwith PW-5 Ct. Siya Ram. While patrolling when they reached at the red light near Ordinance Depot, many persons had gathered there in front of the gate of the Depot and the public persons were beating a boy. They both separated the crowd from the said boy and rescued him. On enquiry, they came to know that complainant Sanjay Kumar, who had apprehended the said boy, had gone inside the Ordinance Depot to consult his seniors. After some time, he came to the spot and his statement was recorded wherein he alleged that he was employed with Trademan group and on that day, he was coming for his duty in the Ordinance Depot and had boarded the mini bus at Jakhira. At about 8.30-8.45 AM, when the bus reached at bus stand, Ordinance Depot, Shakur Basti, one person put knife at my back and the other person took out person from his pocket and the accused started running towards the Peera Garhi. He chased them and managed to apprehend one person and in the meantime, public persons gathered there who started beating the said person. In the meantime, police officials reached there and on his personal search, one small blade like thing was recovered. On enquiry, he told that his associates name was Kalu and his two friends were also involved in the crime. On enquiry, the name of said person was revealed as Sonu. Complainant further stated that accused Sonu alongwith his associates had robbed him of his SC No. 462/17 State Vs Sonu & Anr. Page 2 of 25 purse containing Rs. 3200/-, ATM card and his ID card. PW-6 prepared site plan at his instance. On the basis of his statement,PW-6e prepared rukka and sent PW-5 to police station for registration of FIR. After registration of FIR, he returned to the spot. The said person who was apprehended by complainant was interrogated and was arrested at the instance of complainant. Accused Sonu made his disclosure statement. Thereafter, accused Sonu led them to the house of co-accused Kalu in the area of JJ Colony, Sultan Puri. Accused Kalu was found there and he was arrested at the instance of complainant. His personal search was conducted and he was arrested. His disclosure statement was recorded. On formal search of accused Kalu, Rs. 600/- were recovered. One buttondar knife was also recovered from left pocket of accused Kalu. The sketch of knife was prepared. The amount of Rs. 600/- as well as knife were seized. Accused Kalu also got recovered five mobile phones from his house and same were seized. Thereafter, accused Sonu got recovered one mobile phone from the house of accused Kalu which was seized. One Activa scooty was also seized at the instance of both the accused. Thereafter, accused Sonu got recovered two mobile phones from his house which was also seized. The case property was deposed with MHC(M). Thereafter, IO recorded statement of witness under Section 161 Cr.PC. After completion of the entire investigation, I.O prepared the charge sheet and filed in the court for judicial verdict.
(C) THE CHARGE:SC No. 462/17 State Vs Sonu & Anr. Page 3 of 25
3. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP and accused persons, found a prima facie case for the offences punishable under section 392/397/34 IPC against both the accused persons and u/s 25 of Arms Act and u/s 411 IPC against accused Kalu. Charges were accordingly framed to which both the accused persons pleaded not guilty and claimed trial.
(C) PROSECUTION EVIDENCE :
In order to prove its case, prosecution examined in as much as 06 witnesses.
4. PW-1 is WHC Suman. She is the duty officer who has proved the FIR as Ex.PW1/A and endorsement on the original rukka as Ex.PW1/B and the certificate u/s 65B of Indian Evidence Act.
5. PW-2 Sh. Sanjay Kumar is the complainant in the present case. His entire deposition is reproduced as under:
" On 18.05.2017 in the morning, I was going to join my duty at Ordinance Depot, Shakurpur Basti. I was in a Minni Bus and standing in the bus. Accused persons were also traveling in the same bus. At about 8:30 AM when bus reached near the Ordinance Depot Bus Stop, one accused person had shown knife and snatched my purse from my pocket. Accused persons got down from the bus and started running towards Peeragarhi. One of the accused persons was apprehended. Public persons gathered at the spot. A SC No. 462/17 State Vs Sonu & Anr. Page 4 of 25 small blade was found in the possession of accused who was apprehended at the spot. I had taken the accused to the gate of Ordinance Depot. Police reached at the Ordinance Depot. I handed over the custody of accused Sonu to the police. My purse which was snatched by the accused containing cash of Rs.3200 rupees, ATM Card and some ID copies. Police recorded my statement Ex.PW2/A bearing my signature at point A. Accused Sonu was arrested vide arrest memo Ex.PW2/B bearing my signature at point A. personal search was conducted vide personal search memo Ex.PW2/C bearing my signature at point A. Police recorded the disclosure statement of accused Sonu which is Ex.PW2/D bearing my signature at point A. I handed over the blade to police which was seized vide a seizure memo Ex.PW2/E bearing my signature at point A. Accused Sonu disclosed the name of co-accused Kalu who was involved in the crime with him. Thereafter, accused Sonu led us to the house of accused Kalu. Accused Kalu was found present at his house and he was arrested vide arrest memo Ex.PW2/F bearing my signature at point A. Personal search of accused Kalu was conducted vide memo Ex.PW2/G bearing my signature at point A. One knife was recovered from the possession of accused Kalu and the same was seized vide seizure memo Ex.PW2/H bearing my signature at point A. Rupees 600/- were also recovered from the possession of accused Kalu and the same was seized vide seizure memo Ex.PW2/I bearing my signature at point A. I.O prepared the sketch of recovered knife which is Ex.PW2/J bearing my signature at point A. Disclosure statement of SC No. 462/17 State Vs Sonu & Anr. Page 5 of 25 accused Kalu is Ex.PW2/K bearing my signature at point A. Both the accused persons are present in the court today(correctly identified by the witness). At this stage, the witness states that he can identify Rs.600/-, if shown to me, as there was one note of Rs.500/- and one note of Rs.100/-. At this stage, MHC(M) produced the sealed pullanda sealed with the seal of BS. The seals are broken. One note of Rs.500/- denomination and one note of Rs.100/- denomination are taken out from the pullanda. The same are exhibited as Ex.P-1 & Ex.P-2 respectively. The witness further stated that a knife which was recovered from the accused Kalu, if produced, he can identify the same. The knife was a buttondar knife. The spots were printed on the handle of knife. At this stage, MHC(M) produced the sealed pullanda sealed with the seal of BS. The seals are broken. One buttondar knife was taken out from the pullanda. After seeing the knife, the witness has identified that it is the same knife which was recovered from the possession of accused Kalu. The same is exhibited as Ex.P-3. At this stage, MHC(M) produced another sealed pullanda sealed with the seal of BS. Seals are broken and one blade is taken out from the pullanda. The blade is Ex.P-4. Witness identified the same by saying that this is the same blade which was recovered from the possession of accused Sonu.
XXXX by Sh. Praveen Pachauri, Ld. Counsel for both accused.
I am 10th pass. I am having the I card of my employer now the witness has shown the I card, copy of the same is taken on record and same is Ex. PW2/DA. I SC No. 462/17 State Vs Sonu & Anr. Page 6 of 25 had not given my I card to IO during investigation. There were 4-5 co-passengers in mini bus in which the incident took place. I had taken the ticket of bus from the conductor. IO had not taken the bus ticket from me. Police had reached at the spot where accused Sonu was apprehended, at about 8:45 - 9 AM. My duty hours were 8:50 AM to 4:50 PM. I got my attendance marked at the gate of Ordinance Depot. Then joined the investigation. Senior officers of ordinance depot also reached at the gate. My statement was recorded by IO at the gate of Ordinance depot. I had not visited the police station in connection with present case. IO had not recorded the statement of any other person in my presence. IO had obtained my signatures on about 4-5 papers. The documents were my complaint, disclosure of accused Sonu and his arrest memo, seizure memo and some other documents. Public persons were standing outside the gate of Ordinance depot. There were 2-3 police officials. All the three police officials remained present throughout the investigation with me. Police had taken permission from my senior officers to get me join in the investigation and thereafter gypsy was called at about 9:30 AM. After recovery of Rs. 600/- and a knife from the accused Kalu I returned to my office in Ordinance Depot at about 9:45 AM - 10 AM. Police stayed at the gate of Ordinance Depot for about 1/2 an hour. Site plan was prepared by the police at the same time at the gate. I did not join investigation after the day of incident. It is wrong to suggest that I was not travelling in mini bus that is why I had not given any ticket to the IO. It is wrong to suggest that accused persons have been falsely SC No. 462/17 State Vs Sonu & Anr. Page 7 of 25 implicated in the present case. It is wrong to suggest that nothing was recovered from the possession of accused persons and the case property I.e. knife and currency notes were planted upon accused. It is wrong to suggest that I deposed falsely at the instance of IO. IO had not asked any neighbours of Kalu to join the investigation. I had not entered the house of the accused. Accused Kalu was arrested in my presence. The accused Kalu was arrested on the pointing out of accused Sonu."
6. PW-3 is Sonu who has deposed as under:
My mobile phone of INTEX white colour was stolen from Machi Chowk on 16.05.2017 when we were boarding the bus at Machi Chowk, Sultan puri, Delhi. The phone was dual sim phone. At that time I was using the mobile number 9540599914 and 7289003692. I had not lodged any FIR regarding the theft of my mobile. After a few months police called me that my mobile has been found and called me at Madipur Choki. Thereafter I got released my mobile phone. Today I have brought the mobile bearing IMEI no. 91150835064212 and 911508350642138 same is Ex. P1. Photocopy of mobile bill is Mark A. XXXX by Sh. Praveen Pachauri, Ld. Counsel for both accused.
It is wrong to suggest that the said mobile phone was not recovered from accused Kalu. It is wrong to suggest that I did not lodge any FIR because the same was not stolen.
7. PW-4 is HC Sunil Kumar was the MHC(M) at PS Punjabi Bagh SC No. 462/17 State Vs Sonu & Anr. Page 8 of 25 and has deposed that on 18.05.2017, he received three parcels having seal of BS. On the same day, he also received one scooty bearing registration No. DL 4S CF 4958 and four other parcels having seal of BS. He made entries in register no. 19 to this effect.
8. PW-5 is Ct. Siya Ram. This witness has accompanied the IO of the case to the spot. His deposition is on the similar lines as that of PW-6.
9. PW-6 is Retired SI Baljor Singh, IO of the case. His testimony is reproduced as under:
"On 18.05.2017, I was posted as ASI at PS Punjabi Bagh and was performing my duties at PP Madipur. On that day, I alongwith Ct. Siya Ram was on petrolling in the area. At about 9:00 am we reached near Ordinance Depot red light. We saw that public persons were beating a person. We separated the public persons and rescued the persons. We came to know that one Sanjay Kumar who had apprehended the said person had gone inside his office in order to consult his seniors. After sometime, he came to the spot and he got his statement recorded to me. He also handed over a blade to us. I had prepared site plan Ex. PW- 6/A which bears my signatures at point A. The blade was converted into a sealed parcel with the seal of BS and was seized vide seizure memo already Ex. PW-2/E which bears my signatures at point B. I prepared rukka and sent Ct. Siya Ram to PS for registration of FIR. He went to the PS and got the FIR registered. After registration of FIR he SC No. 462/17 State Vs Sonu & Anr. Page 9 of 25 returned to the spot and returned the rukka and copy of FIR to me. The said person was interrogated and his name was revealed as Sonu. He was arrested at the instance of complainant vide arrest memo already Ex. PW-2/B which bears my signatures at point C. His personal search was taken vide memo already Ex. PW-2/C which bears my signatures at point C. Accused made his disclosure statement and same is already Ex. PW- 2/D which bears my signatures at point C. Thereafter, accused Sonu led us to the house of co-accused Kalu in the area of JJ colony Sultan Puri. Accused Kalu was found there and he was arrested at the instance of complainant vide arrest memo already Ex. PW-2/F which bears my signatures at point C. His personal search was taken vide memo already Ex. PW-2/G which bears my signatures at point C. Accused made his disclosure statement and same is already Ex. PW-2/H which bears my signatures at point C. On formal search of accused Kalu Rs. 600/- were recovered. One buttondar knife was recovered from left pocket of pant of accused Kalu. The amount was seized vide seizure memo already Ex. PW-2/I which bears my signatures at point C. The sketch of knife was prepared which is already Ex. PW-2/J which bears my signatures at point C. The knife was kept in a parcel with the seal of BS and was seized vide seizure memo already Ex. PW-2/H which bears my signatures at point C. Accused Kalu got recovered 5 mobile phones from his house and same were seized vide seizure memo Ex. PW-5/A which bears my signatures at point B u/s. 102 Cr.PC. Thereafter, SC No. 462/17 State Vs Sonu & Anr. Page 10 of 25 accused Sonu got recovered one mobile phone from the house of Kalu and same was seized u/s. 102 Cr.PC vide seizure memo Ex. PW-5/B which bears my signatures at point B. One Activa Scooty was also seized u/s. 102 Cr.PC at the instance of both the accused persons vide seizure memo Ex. PW-5/C which bears my signatures at point B. Thereafter, accused Sonu got recovered two mobile phones from his house and same were seized u/s. 102 Cr.PC vide seizure memo Ex. PW- 5/D which bears my signatures at point B. Thereafter, we returned to PS after getting the medical examination of both the accused persons. I deposited the case property with MHC(M) and recorded statement of Ct. Siya Ram. Both accused persons are present in the court (correctly identified). I can identify the case property. At this stage, MHC(M) produced Rs. 600/- in the denomination of one note of Rs. 100/- and one note of Rs. 500/- (which are opened during testimony of PW-5). The same are shown to the witness, who identified the same as recovered from accused Kalu. The currency notes are Ex. P1 and Ex. P2. At this stage, MHC(M) produced knife (which is opened during testimony of PW-5). The same is shown to the witness, who identified the same as recovered from accused Kalu. The knife is Ex. P3.
XXXX by Sh. Praveen Pachauri, Ld. Counsel for accused Sonu and by Sh. Pranay Abhishek, Ld. Counsel for accused Kalu. I do not remember the DD number by which I had left police station for petrolling. I did not make any SC No. 462/17 State Vs Sonu & Anr. Page 11 of 25 arrival entry when we reached PS after conducting investigation. Vol. I got FIR registered. When I reached the spot, 15-20 persons were present there. I do not remember name of any of them. No notice was given to them. I did not record their name or address. We remained at the spot till 3:30 pm. I completed writing work at the spot itself in the park near the gate of Ordinance Depot. The guard of Ordinance Depot was present there but I did not record his statement. Vol. He was inside the gate. There was no CCTV camera at the gate. I had prepared site plan at about 12:00 noon. I had prepared the site plan in all respect. It is correct that no table or chair is mentioned in the site plan. Ct. Siya Ram took rukka to PS at 12:10 pm and he returned at 1:45 pm. He returned to the spot alone. It is correct that I came to know FIR number after receiving copy of FIR. It is correct that when I prepared site plan I was got aware of FIR number. Vol. I mentioned FIR number after receiving rukka. I do not remember as to how many storied house of accused Kalu was. I also do not remember in which direction the door of house of accused Kalu opens. I do not remember about the details of other houses which were located around the house of accused Kalu. It is correct that no public witness was joined at the time of arrest of the accused persons. It is also correct that no public witness was joined during the recovery of articles as well as knife. It is correct that no notice was given to public persons who refused to join the investigation. I handed over the seal to Ct. Siya Ram after use. No document was prepared in SC No. 462/17 State Vs Sonu & Anr. Page 12 of 25 respect of handing over of seal. I received back my seal in the night after deposing case property with MHC(M). It is wrong to suggest that no such item was seized by me in this case or that case property is tampered and is planted on the accused. It is wrong to suggest that accused persons were not arrested in the manner as stated by me above. It is wrong to suggest that accused persons did not make any disclosure statement. It is correct accused Kalu was present at the spot. It is wrong to suggest that he was wrongly arrested in this case on the basis of a fabricated disclosure statement. It is wrong to suggest that nothing was recovered from accused Kalu. It is wrong to suggest that articles and weapon have been planted on the accused persons in order to implicate them in this case."
10. After conclusion of prosecution evidence, statement of both the accused persons under Section 313 CrPC were recorded wherein all the accused persons have taken the plea of false implication in the present case. In support of their defence, none of the accused persons lead any defence evidence.
(D) REASONS AND DECISION
11. I have heard the Ld. Addl. PP for the State and Ld. Counsel for the accused persons.
SC No. 462/17 State Vs Sonu & Anr. Page 13 of 2512. It is argued on behalf of accused persons that though complainant was working in the Ordinance Depot, no officer from the Ordinance Depot has been cited and examined as a witness which clearly shows that no such incident of robbery happened and the prosecution story is false.
13. It is further argued that as per the case of the prosecution the incident happened while the complainant was travelling in the mini bus, however, no one from the bus i.e passenger, driver or conductor has been cited as a witness which further casts serious doubts over the prosecution story.
14. Another argument raised by Ld. Defence Counsel is that except the complainant, there is no other witness to corroborate the version of the complainant. It is therefore, argued that the accused persons cannot be convicted solely on the basis of a single witness despite the fact that there were co-passengers in the mini bus when the incident happened.
15. It is further argued that no specific role has been assigned to the accused as to who used the knife and who removed the purse from the pocket of the complainant and as such, it further raises doubt over the prosecution story and no offence u/s 397 IPC is made out against any of the accused persons.
16. It is further argued that there is no independent witness to the recovery of knife, purse etc. from the possession of accused persons which makes it amply clear that the case properties were planted upon the accused persons and as SC No. 462/17 State Vs Sonu & Anr. Page 14 of 25 such, it further raises serious doubts over the prosecution story.
17. In view of the above arguments and contradictions pointed out, it is argued that the entire prosecution story is concocted one and both the accused persons have been falsely implicated in the present case by the police. Therefore, it is prayed that all the accused persons may be acquitted of all the charges levelled against them.
18. While opposing the arguments of the accused, Ld Addl PP for the State has argued that all the PWs examined by the prosecution have firmly stood in the test of cross examination and has been able to prove the case of prosecution beyond the pale of reasonable doubts. It has been stated that the prosecution has been able to establish its case clearly and categorically and merely because there are some discrepancies in the testimony of PWs does not take away their clear and categorical deposition before the Court and the Court is not required to procure a parroted version of PWs.
19. I have given a thoughtful consideration to the record and the arguments advanced. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt SC No. 462/17 State Vs Sonu & Anr. Page 15 of 25 which ultimately leads to his/her acquittal. 1997 (3) Crimes 55 titled Sadhu Singh Vs State of Punjab.
20. Thus, the cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs. Public Prosecutor High Court of A.P, (SC) 2009(1) R.C.R ( Criminal) 290 : 2009(1) R.A.J: 2008 (15) Scale 212, the Hon'ble Supreme Court observed as under:
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case..... Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence,or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
21. Before adverting to the analysis of evidence which has come on record it would be appropriate to first briefly discuss the offences with which the accused has been charged with.
SC No. 462/17 State Vs Sonu & Anr. Page 16 of 2522. The accused have been charged with the offences punishable U/S 392/397/411/34 IPC. Section 392 IPC deals with punishment for the offence of robbery.
23. To constitute an offence u/s 392 of IPC following ingredients are required:-
1. Accused committed theft ;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3.He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
24. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section
390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
25. Section 397 IPC is the aggravated form of robbery which deals with the offence of robbery or dacoity, with attempt to cause death or grievous hurt requires the following ingredients to be established:-
(i) commission of Robbery or Dacoity by the accused persons;
(ii) at the time of committing robbery or dacoity, the accused person used deadly weapon or caused grievous hurt or attempt to cause death or grievous hurt;
(iii) the above acts were done during the commission of SC No. 462/17 State Vs Sonu & Anr. Page 17 of 25 robbery or dacoity.
26. Section 411 IPC - In order to convict a person for the offence of receiving stolen property, it is necessary to establish three factors :
(i) that the property in question was stolen property,
(ii) that the stolen property was in possession of the accused,
(iii) that it was dishonestly received or retained and
(iv) the accused knew or had reason to believe that the, property was stolen property.
27. Now on the basis of testimony of witnesses and documents on record, the court has to scrutinies whether the case of the prosecution satisfies any or all of the aforesaid ingredients.
28. The prosecution version is primarily based on the statement of public witness/ complainant namely Sanjay Kumar. He is the only eye witness who was present at the time of commission of crime and can only connect the accused with the alleged incident. In his deposition, he has categorically deposed that on 18.05.2017 in the morning, he was going to join his duty at Ordinance Depot, Shakurpur Basti. He was in a Mini Bus and standing in the bus. Accused persons were also traveling in the same bus. At about 8:30 AM when bus reached near the Ordinance Depot Bus Stop, one accused person had shown knife and snatched his purse from his pocket. Accused persons got down from the bus and started running towards Peeragarhi. One of the accused persons was SC No. 462/17 State Vs Sonu & Anr. Page 18 of 25 apprehended. Public persons gathered at the spot. A small blade was found in the possession of accused who was apprehended at the spot. He had taken the accused to the gate of Ordinance Depot. Police reached at the Ordinance Depot. He handed over the custody of accused Sonu to the police. From the deposition of complainant/PW-2, it is clear that accused persons had robbed him of his purse by putting him in fear by pointing a knife on him. The witness was also cross examined, however, his testimony has remained intact and unimpeached.
29. As regards the argument of defence that no other independent witness has been examined despite the presence of co-passengers, driver and conductor, it is not the case that the mini bus stopped at the Ordinance depot, it stopped for a moment and the accused person got down and ran away and immediately, the complainant also ran after them and managed to chase one of the accused. So, there was no occasion to make the occupants of the mini bus as a witness by the police. Therefore, even if there are no other independent witness, it does not affect the case of the prosecution in view of the cogent and categorical testimony of the complainant.
30. So far as the argument of defence that there is no independent recovery witness is concerned, it is seen that PW- 2/complainant has accompanied the police officials to the house of accused Kalu and the seizure memos bear the signatures of complainant as a witness and these memos have SC No. 462/17 State Vs Sonu & Anr. Page 19 of 25 been proved by the complainant himself. He is an independent witness who has also correctly identified the accused persons and have also successfully stood the test of cross examination. Therefore, this argument of defence holds no ground and is accordingly rejected.
31. As regards the plea of false implication taken by the accused persons is concerned, no probable defence has been put forth by the accused persons either in the suggestion or by way of defence evidence. Further, the complainant was not known to the accused persons prior to the incident and hence, there was no occasion for him to falsely implicate the accused persons in this case. Therefore, this court holds that accused persons have merely taken the general plea of false implication without any probable defence and same is accordingly rejected.
32. Another important piece of evidence in the present case is the recovery of weapon of offence knife which was used in committing robbery, recovered from the possession of accused Kalu. It is the settled principle of law that a disclosure statement of accused becomes admissible when any recovery is effected on the basis of disclosure statement of accused. In the present case, disclosure statement of accused led to the recovery of weapon of offence i.e button operated knife from the possession of accused Kalu. Therefore, the disclosure statements of accused recorded in the present case has evidentiary value and becomes admissible, to the extent of recovery, in the present case and as such, the argument of SC No. 462/17 State Vs Sonu & Anr. Page 20 of 25 defence that the case properties were planted upon the accused falls to the ground.
33. Another argument of defence is that accused persons cannot be convicted merely on the sole testimony of a single witness i.e complainant in the instant case. In this regard, there have been catena of judgments wherein Hon'ble Supreme Court of India has held that it is the quality of witness that is more significant and to be given weightage than the quantity of witnesses.
34. In Seeman alias Veeranam vs State reported as (2005) 11 SCC 142, the aforesaid legal position was explained by the Supreme Court in the following manner:-
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the Court while scrutinizing the evidence of the interested sole witness. The prosecution's non-production of one independent witness who has been named in the SC No. 462/17 State Vs Sonu & Anr. Page 21 of 25 FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
35. Similar observations were made by Hon'ble Supreme Court of India in case titled as State of Uttar Pradesh V. Kishanpal, 2008 (8) JT 650 wherein it was held that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
36. Also, section 134 of Indian Evidence Act also states that no particular number of witnesses shall in any case be required for the proof of any fact.
37. Therefore, in view of above judgments and perusing the testimony of PW-2, this court holds that the testimony of this PW-2, having remain intact and unimpeached, can be safely relied upon.
38. It is also proved on record that a button operated knife was recovered from the accused Kalu vide seizure memo Ex.PW2/H and a sketch of knife has been proved vide sketch memo Ex.PW2/J and this further gets corroborated from the disclosure statement of accused Kalu Ex.PW2/K which has become admissible as discussed above. Therefore, prosecution SC No. 462/17 State Vs Sonu & Anr. Page 22 of 25 has been able prove the recovery of a button operated knife from the possession of accused Kalu in contravention of notification issued by Delhi Administration and therefore, he is held guilty for offence punishable u/s 25 Arms Act.
39. PW-5 and PW-6 are the police officials, PW-6 being the IO of the case have also corroborated the version of the PW- 2/complainant and have also proved the arrest and subsequent recovery of weapon of offence and Rs. 600/- from the accused Kalu.
40. Since accused Kalu has been charged u/s 397 IPC, the prosecution was under obligation to prove that accused Kalu had used the knife for committing robbery, however, in the testimony of PW-2/complainant, the witness has merely deposed that "one accused person had shown knife and snatched his purse from his pocket" but it is not specifically deposed as which of the accused had used knife in committing robbery. Further, even there was no suggestion put to this witness from the prosecution to this effect. Therefore, I am of the considered opinion that prosecution has not been able to prove the charge u/s 397 IPC against accused Kalu.
41. Therefore, in view of the foregoing discussion, it has been proved on record that on 18.05.2017, at about 8.30 PM, accused Sonu and Kalu alongwith co-accused (since not arrested) in furtherance of their common intention, while travelling in a mini bus had robbed the complainant/PW-2 Sanjay Kumar at Ordinance Depot, Shakurpur Basti, of his SC No. 462/17 State Vs Sonu & Anr. Page 23 of 25 purse containing Rs. 3200/-, ATM card and other belongings. Therefore, both accused Sonu and Kalu are held guilty of committing offence punishable u/s 392/34 IPC.
42. Now, I shall proceed to decide if accused persons are guilty of dishonestly receiving stolen property.
43. As per seizure memo Ex.PW2/I, it has been proved on record that Rs. 600/- (one currency note of Rs. 500/- and one currency note of Rs. 100/-) were recovered from the possession of accused Kalu and in his disclosure statement Ex.PW2/K, he has disclosed that the purse belonging to the complainant contained Rs. 3200/- and after committing robbery, Rs. 600/- came to his share and the remaining amounts were kept by other co-accused persons (not arrested in this case).
44. All the recovery witnesses have stood the test of cross examination and nothing contrary could be extracted from them.
45. Therefore, in view of the above discussion, this court is of the considered opinion that prosecution has been able to prove beyond reasonable doubt that the accused Kalu is guilty of dishonestly receiving stolen property which was recovered from him. Hence, accused Kalu is also held guilty for offence punishable u/s 411 IPC.
(E) CONCLUSION:
SC No. 462/17 State Vs Sonu & Anr. Page 24 of 2546. In view of my above findings, accused persons are convicted as under:
Accused Sonu and Kalu are held guilty and convicted for the offence punishable u/s 392/34 IPC.
Accused Kalu is also held guilty and convicted for offence punishable u/s 411 IPC and u/s 25 Arms Act.
47. Let they be heard on the point of sentence.
Digitally signed POORAN by POORAN
ANNOUNCED IN THE OPEN CHAND
CHAND
Date: 2022.05.27
COURT ON THIS 26.05.2022 15:55:19 +0530
(POORAN CHAND )
ADDITIONAL SESSIONS JUDGE-02
(WEST):DELHI
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